LLP v. Valerie O'Halpin (2012)

Memorandum of Decision

In this matter, the plaintiff, a law firm, seeks a prejudgment remedy against the defendant, a former client, for legal fees which it claims it is owed.   The application for a prejudgment remedy filed on January 18, 2012 states that the plaintiff is about to commence an action against the defendant pursuant to a proposed complaint attached to the application.   The complaint alleges six counts ¹ each seeking to recover for the plaintiff the balance of legal fees in the amount of $128,873.24 which it claims the defendant owes the plaintiff.

PLAINTIFF'S PROPOSED COMPLAINT

In the proposed complaint attached to the application for a prejudgment remedy the plaintiff claims that it is a “full-service law firm with offices located across the country including in Stamford, Connecticut and New York, New York.” The complaint alleges that the “action arises out of [the defendant's] egregious disregard for her payment obligations to [plaintiff] pursuant to the express terms of [plaintiff's] retainer Agreement (the “Retainer Agreement”) with [defendant], as well as a Court–Ordered stipulation signed by [the defendant], authorizing and directing, among other things, the release of $50,000 from a joint marital account (the “Joint Account”) at Morgan Stanley Smith Barney (“Morgan Stanley”) to [defendant's] own personal account at Morgan Stanley, to be immediately applied against outstanding legal fees and costs due to [plaintiff].”  (Emphasis in original.)   The complaint claims that the plaintiff is entitled to $50,000 pursuant to the retainer agreement and a court order, and that the plaintiff is entitled to an additional $78,873.24 under the retainer agreement for a total of $128,873.24.

The proposed complaint alleges that on or about June 2, 2011 ² the plaintiff and the defendant entered into a retainer agreement “in connection with a matrimonial dissolution action.”   The retainer agreement was an exhibit to the proposed complaint.   In addressing the scope of representation, the retention agreement states “you have retained the Firm to represent you including, without limitation, negotiating a final settlement and Dissolution Judgment of Divorce with regard to equitable distribution of the property and assets held by you and your spouse, the disposition, division and distribution of separate property, alimony, child support, custody, visitation and related issues, as applicable if that is reasonably possible;  or if not, to represent you in Court in related proceedings including motion practice, hearings, discovery, and an appeal, if necessary.”

Under the terms of the agreement the plaintiff agreed:  “to use its best efforts in representing [the defendant.”   The agreement further stated that “not every possible action can or should be taken ․ because of limitations of time, the financial cost ․ and the emotional and psychological aspects of the case.”

The agreement disclosed that attorney Opinsky's billing rate would be $470 per hour;  that other attorneys in the firm would charge between $220 and $675 an hour;  and that paralegal rates would range between $115 and $260 an hour.   The agreement further disclosed a minimum charge of .2 or 12 minutes for telephone conferences.   The agreement further provided:  “If you discharge the Firm as your attorney, or if the Firm were to withdraw its representation of you prior to the conclusion of the matter, and outstanding and disputed fees are due the Firm, a fair and reasonable fee shall be determined in accordance with legally accepted standards, including a right to arbitration.”

In another paragraph, anticipating the possibility of disagreements between the parties over fees, the agreement provides:  “Should any fees be due and owing to this Firm at the time of my discharge, we shall have the right, in addition to any other remedy, to seek a charging lien, i.e. lien upon the property that is awarded to you as a result of a property settlement as applicable in your case,³ in the final order or judgment in your case, or a retaining lien on the file which comes into the attorney's possession or to seek payment, a money judgment, and such other and further relief, mediation, and arbitration of the disputed fees.”

“While we seek to avoid fee disputes with clients, and rarely have such disputes, in the event such a dispute arises, you are advised that you have the right to contest such fees by way of arbitration, mediation or through the courts.”

The agreement included several disclaimers:

The Firm has specifically refrained from making any promises or guarantees to you about the outcome or success of your matter, and nothing in this agreement shall be construed as such a promise or guarantee.

It is specifically acknowledged by you that this Firm has made no representations to you, express or implied, concerning the outcome of the litigation presently pending or hereafter to be commenced between you and your spouse.   You further acknowledge that this Firm has not guaranteed and cannot guarantee the success of any action taken by the Firm on your behalf during such litigation with respect to any matter herein, including without limitation, with regard to equitable distribution of the property and assets held by you and your spouse, the disposition, division and distribution of property, alimony, child support, custody, visitation and related issues, as applicable, if that is reasonably possible;  or, if not, to represent you in Court in related proceedings, including a trial if required.

You are aware of the hazards of litigation and acknowledge that we have made no guarantees in the disposition of any phase of the matter for which you have retained this Firm.

The agreement provided for a retainer in the amount of $20,000 which the defendant paid.

Paragraph 13 of the proposed complaint claims that:  “During the course of the representation, [the plaintiff] performed extensive legal work on [the defendant's] behalf, including, without limitation:

(a) extensive motion practice in the courts of the States of Connecticut and New York, including, without limitation, motions for support, enforcement, compliance, contempt, discovery and legal fees;

(b) preparing demands and responses for discovery;

(c) obtaining Appointments of Commissions to conduct depositions of third-parties in New York and conducting discovery;

(d) enforcing said Commissions in New York State Supreme Court, including, without limitation, extensive motion practice, legal memoranda, and court appearances relating to the successful defense of Motions to Quash and Dismiss;

(e) enforcing and conducting depositions of the parties and third-party witnesses in New York;

(f) seeking resolution of the matrimonial dispute through Court-appointed Special Masters, Private Special Masters, and a Private Expert Accountant;

(g) seeking resolution of the matrimonial dispute through written correspondence with opposing counsel and third-party counsel;  and

(h) appearing in court and engaging in settlement conferences.

Paragraph 19 of the proposed complaint alleges that on or about September 30, 2010, the defendant and her husband entered into a stipulation allowing $50,000 to be released to each of them from the joint Morgan Stanley account in order to allow them to pay their respective counsel fees.   The plaintiff apparently received the entire $50,000 bringing which, together with the $20,000 retainer paid in June 2010, brought the total payments made to the plaintiff to $70,000.

Paragraphs 20 and 21 of the proposed complaint alleges that on or about March 2, 2011 the plaintiff sought to be paid an additional $50,000 toward a balance due of “at least $99,000.”   A copy of a stipulation dated March 2, 2011 was attached to the complaint as “Exhibit C.” The terms of that stipulation were identical to those of the September 30, 2010 stipulation and allowed both the plaintiff and counsel representing her husband to each be paid $50,000 from the joint account which the couple maintained at Morgan Stanley and Company.   Exhibit C is signed by the defendant, but not by her husband.

Paragraph 22 alleges that on or about April 18, 2011, pursuant to the stipulation of the parties, the court entered an order permitting the transfer of an additional $50,000 from the joint Morgan Stanley account to the defendant and her husband to order to permit them to pay their respective attorneys.   A copy of the stipulation and a copy of the court transcript is attached to the proposed complaint as Exhibit D. The stipulation is signed by both the defendant and her husband.

Paragraphs 24 through 28 detail the unsuccessful efforts made by the plaintiff to obtain possession of the funds released by Morgan Stanley to the defendant.   Paragraph 29 alleges that on May 4, 2011 the defendant discharged the plaintiff as her counsel.   Paragraph 32 alleges that the defendant breached her obligations under the retainer agreement by failing to pay the plaintiff as agreed, and that the defendant is indebted to the plaintiff in the amount of $128,873.24.

STANDARD OF PROOF

Connecticut General Statutes § 52–278a et seq., define the process of obtaining prejudgment remedies.   Under the provisions of § 52–278d(a) the court is required to determine after a hearing “whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought ․ will be rendered in the matter in favor of the plaintiff.”   In a civil context, probable cause has been defined as “a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ․ Probable cause is a flexible common sense standard ․ It deals with probabilities, and the application of the factual and practical considerations of everyday life on which reasonable and prudent men act.'   “ (Emphasis in original.)  Adriani v. Commission on Human Rights & Opportunities, 228 Conn. 545, 549–50 (1994).  “[T]he burden of proof at a probable cause hearing is a low one ․” 36 DeForest Ave. LLC. v. Creadore, 99 Conn.App. 690, 698 (2007).

Despite the allegations of the proposed complaint that the defendant owes the plaintiff $128,873.24, the plaintiff seeks “an order from the court directing the attachment of sufficient property of the defendant to secure the sum of no less than $50,000.”   Neither the application nor the proposed order of attachment submitted by the plaintiff identify the property of the defendant which it seeks to attach.

THE LIS PENDENS

The plaintiff did not seek or obtain an ex-parte prejudgment remedy pursuant to General Statutes § 52–278e.   Nevertheless, on January 26, 2012 the plaintiff filed a Notice of Lis Pendens on the Stamford land records referencing property located at 2297 Long Ridge Road, the defendant's residence.   The Notice of Lis Pendens purports to give notice of “the pendency of a civil action between Fox Rothschild LLP ․ and defendant Valerie O'Halpin” and states that such “actions affects property now owned jointly by the Defendant and her husband, James O'Halpin.”   The docket number on the Notice or Lis Pendens (FST CV 12 5013803 S) refers to the plaintiff's present application for a prejudgment remedy.   The records in this court show that, as of the date of this memorandum of decision, a civil action had not yet been commenced by the plaintiff against the defendant.⁴  A review of the six counts of the plaintiff's complaint show that none of those counts is intended to affect real property within the meaning of General Statutes § 52–325(b).⁵  The court cannot conceive of any basis, consistent with the defendant's constitutional rights, for sustaining the validity of the lis pendens.   In filing the lis pendens the plaintiff displayed either a disturbing ignorance of the law or a willingness to set its perceived financial advantage above the law.

The court, acting sua sponte, orders the plaintiff to file a release of the lis pendens on the Stamford land records within five days of receipt of a copy of this memorandum of decision.⁶

THE EVIDENTIARY HEARING

A hearing on the plaintiff's application for a pre-judgment remedy was held on March 19, 2012.   At that hearing the plaintiff law firm was represented by one of its partners and the defendant represented herself.   In support of its application for a pre-judgment remedy the plaintiff called attorney, Heidi Opinsky, as a witness.   Opinsky testified that she is a partner in the plaintiff law firm and that she specializes in family law.   She testified that in June 2010, the defendant retained the plaintiff as successor counsel in a pending action between the defendant and her husband involving a dissolution of their marriage.   Opinsky authenticated a “Retention Agreement” between the plaintiff and the defendant dated June 20, 2010.  (Ex.1.)

Attorney Opinsky testified that when the defendant retained the plaintiff's firm there were pendente litem orders in place requiring the defendant's husband to pay certain expenses on behalf of the defendant and to provide her with medical insurance coverage.   Opinsky was aware that when she began her representation of the defendant there had been no discovery conducted by prior counsel.   She was also aware that the defendant was not employed and had no income.   Prior to the execution of the retention agreement, the defendant informed Opinsky that her husband owned, or had previously owned, a substantial interest in “OMC,” a business located in New York, and that her husband also owned a valuable building in New York City that was connected to the business.   The defendant told Opinsky that her husband had income or approximately $3 million dollars in 2000 and $1.5 million in 2001.   She also told Opinsky that she believed that her husband was hiding assets from her and was resisting the discovery efforts of her prior counsel.   She informed Opinsky that her husband's personal accountant was named Michael Siviak and that Siviak was also the accountant for the business in New York that her husband either owned, or had previously owned.   She also told Opinsky that her husband's partner or former partner was named Michael Cheeci and that she believed that he and her husband owned real estate together in New York City.

Opinsky testified that she was admitted to practice in New York and Washington, D.C. as well as Connecticut.   She informed the defendant of this information and assured her that plaintiff could secure the testimony of Siviak and Cheeci by obtaining commissions to take their deposition in New York which, if necessary, could be enforced by New York Courts where she was familiar with their rules of practice.

PLAINTIFF'S INVOICES

The invoices presented to the defendant by the plaintiff were authenticated by Opinsky's testimony and admitted into evidence as Exhibit 2. The first invoice issued on July 12, 2010 showed that from June 20 to June 29, 2010 Opinsky spent 12.4 hours on the defendant's case and billed $5,828 against the retainer.   The second invoice issued on August 20, 2010 showed that during the month of July, 2010, Opinsky spent 26.2 hours of the defendant's case,⁷ and billed $12,543.09 against the retainer.

The third invoice dated October 21, 2010 covered the months of August and September 2010 and totaled $37,132.50 for professional services and $910.16 for current expenses.⁸  The invoice shows that entire bill was charged against the retainer, which apparently had been replenished by the defendant.   The charges for professional services included 61.2 hours for Attorney Opinsky;  19 hours for Galiatsos and 16.6 hours for others.   A number of charges for the time of Galiatsos appear questionable.   They include:

08/01/10 Reclaim motions for commission for depositions. 0.5

08/09/10 Review pending motions coming up on short calendar. .03

08/10/10 Mark ready motions for commission and alert opposing counsel. .05

08/16/10 Prepare cover letters regarding account release information. 2.1

08/17/10 Compose, organize and draft cover letters regarding release of account information for various banks. 1.3

08/20/10 File motion for continuance to the court prepare and serve copies to opposing counsel, review and docket court dates. 0.8

08/23/10 Review calendar and docket court dates. 0.2

08/26/10 File motion for contempt with court and serve counsel.⁹ 0.8

9/16/10 Review docket sheet for pending motions.

Reclaim motion for contempt. 1.0

These entries strongly suggest that the time actually spent on simple clerical matters by the plaintiff's staff was, in all probability, overstated and overbilled.

Although the plaintiff firm was retained in June, it does not appear from the invoices that any substantial efforts were made to obtain discovery in New York until late August 2010.   The third invoice reflects that it was paid in full from the retainer, indicating that the plaintiff had replenished the $20,000 retainer which had been largely exhausted by the charges reflected on the first two invoices.

A fourth invoice, dated November 23, 2010 includes charges for dates ranging between September 8, 2010 to October 31, 2010 includes total charges for Opinsky's time of 83.4 hours or $39,198.   Included on the invoice are charges for 8.5 hours of Opinsky's time spent in September 2010, a period covered by the third invoice.   That invoice also includes 8 hours of Opinsky's time on October 12, 2010 preparing for a hearing in Bronx County and 10 hours of Opinsky's time for traveling to and attending a hearing in Bronx County.¹⁰  The fourth invoice reflects that a retainer of $13,586.25 was applied against the total charges of $43,028.61 leaving a balance of $29,442.36 due.

A fifth invoice, dated December 23, 2010 includes charges for the period beginning on November 1, 2010 and ending on November 30, 2010.   It includes charges for 4 hours of Opinsky's time for appearing in Bronx County on November 1, 2010 and 5 hours of her time for another appearance in the court on November 22, 2010.   A charge for 8 hours of Opinsky's time is entered for conducting a deposition in New York City on November 29, 2010—the deponent is not identified.   For the month of November, Opinsky billed the defendant for 50.2 hours of her time or $23,594.   That invoice reflects no payments by the defendant from the date of the prior invoice leaving the defendant indebted to the plaintiff in the amount of $56,411.02.   An entry for 3 hours of Opinsky's time November 23, 2010 suggests that the plaintiff may have been placing pressure on the defendant to bring her account current.   In relevant part that entry reads:

SEVERAL TELEPHONE CONFERENCES WITH CLIENT AND ATTORNEY REGARDING REMOVAL OF 33K FROM MORGAN STANLEY; 11  COURT ORDER;  CLIENT REFUSED TO EQUALIZE;  ADVISED THAT THIS IS MAJOR CHANGE IN CASE FROM OPPOSITION PERSPECTIVE;  MAJOR WAR ADVISED BY THEM;  THEY MAY GET FIRED;  ADVISED CLIENT WHAT COUNSEL SAID;  CLIENT NOT CONCERNED ABOUT COMMENTS ․

A sixth invoice dated January 19, 2011 covered charges for the period beginning December 1, 2010 and ending on December 30, 2010.   The charges include 5 hours of Opinsky's time for an appearance in court in Bronx County on December 13, 2010.   For the month of December, Opinsky charged for 32.4 hours or $15,228.   The invoice reflected no payments by the defendant and showed a balance due of $63,351.52.

A seventh invoice dated February 15, 2011 covered charges for the period January 3, 2011 to January 31, 2011.   The invoice reflects that Opinsky devoted 25 hours to the defendant's matter and charged $11,750.   With other charges the invoice totaled $12,721.93 and showed a balance due of $76,073.45.   An entry on the invoice for January 19, 2011, a day on which Opinsky billed 6 hours included the following entry:

․ DISCUSS GETTING HOUSE OUT OF HUSBAND'S NAME WITH PERCENTAGE OF HOUSE BACK TO HUSBAND;  CLIENT STILL WISHES 100% OF HOUSE AND 100% OF ASSETS WHICH IS UNLIKELY AND HAS BEEN SO ADVISED;  CLIENT ADVISED TO SETTLE AS SOON AS POSSIBLE AND GET APPROVED BY COURT BEFORE BANK OF AMERICA WAKES.

An eighth invoice dated March 8, 2011 covered charges from February 1, 2011 to February 25, 2011.   That invoice showed 22.6 hours for Opinsky resulting in charges of $10,622 and a total bill of $10,978.59.   The balance due was shown as $87,052.04.   An entry on the invoice for February 16, 2011 shows charges for 1.3 hours of Opinsky's time with the following notation:

DISCUSS AND ADVISE OF UNREALISTIC SETTLEMENT AND WILL PROVIDE WHAT CLIENT WISHES BUT DO NOT AGREE WITH TERMS AND BELIEVE THAT THEY WILL REJECT AS IT IS 100% OF MARITAL ESTATE AND MORE FUNDS FROM ASSETS THAT DO NOT EXIST;  BELIEVES INCOME AND SUPPORT WILL DECLINE DRAMATICALLY AS IT WILL BE AROUND 33% OR LESS/MORE OF INCOME EXCLUSIVE OF FUNDS DUE EX–WIFE ON LARGER PENSION WHICH REDUCES LARGER PENSION INCOME BY ONE–HALF, AND SIGNIFICANT AMOUNT OF HIS INCOME;  CLIENT EMAIL CLAIMS I AM JEOPARDIZING CASE IF I DO NOT SEND OFFER DEEMED FAR FROM REALISTIC;  SENT OFFER EXACTLY AS CLIENT WISHES AND HONORED REQUEST BUT ADVISED THEY WILL LIKELY NOT RESPOND;  LENGTHY TELEPHONE CONFERENCES WITH CLIENT AND EMAILS;  REVIEW AND REVISE PROPOSAL AS CLIENT WISHES TO SEND.

A ninth invoice dated May 4, 2011 covered charges from February 21, 2011 to March 30, 2011.   That invoice showed 23.2 hours for Opinsky resulting in charges of $10,904 and a total bill of $12,286.88.   The balance due was shown as $99,338.92.   Entries on the invoice for March 1, 2011, March 9, 2011, March 11, 2011, March 24, 2011 shows charges for Opinsky's time in preparing a stipulation allowing a portion of the fees claimed by the plaintiff to be paid from the Morgan Stanley joint account.   Other entries show that the plaintiff was still attempting, without apparent success, to obtain authorization from the court in Bronx County to depose Mr. Cheeci.

A tenth invoice dated May 31, 2011 covered charges from April 4, 2011 to April 29, 2011.   That invoice showed 43.8 hours for Opinsky resulting in charges of $20,586 and a total bill of $28,399.32.   The balance due was shown as $127,738.24.   Entries show numerous entries for time spent in attempting to get the defendant to agree to pay a portion of the plaintiff's bills from the Morgan Stanley account.   There are no entries indicating continuation of efforts in the court in Bronx County to obtain Cheeci's deposition.

An eleventh invoice dated August 18, 2011 covered charges from May 2, 2011 to May 4, 2011.   That invoice showed 2.1 hours for Opinsky resulting in charges of $987 and a total bill of $1,135.   The balance due was shown as $128,873.24.   An entry on the invoice for May 2, 2011 shows charges for 1.5 hours of Opinsky's time with the following notation:

RECEIVED LETTER FROM CLIENT FALSE STATEMENTS REGARDING ALLEGED TELEPHONE CALL HARASSMENT;  ONLY TRYING TO BE PAID SINCE APRIL 18, 2011 AND PRIOR THERETO SINCE COURT ORDER AND PRIOR PROMISES BY CLIENT;  CLIENT NOW ATTEMPTING TO IGNORE FIRM SINCE SETTLEMENT NEGOTIATIONS HAVE BEEN GOING AS STATED AND SHE CONTINUES TO WANT UNREALISTIC RESULTS OF 100% OF MARITAL ESTATE AND THAN APPROX.   200K WHICH EVEN SPECIAL MASTER PAUL TUSCH INDICATED TO HER WAS IMPOSSIBLE, UNREALISTIC AND NOT RATIONAL;  NOW CLIENT DOES NOT WISH TO PAY WHEN ADVISED CANNOT CONTINUE TO REPRESENT HER WITHOUT PROMISED PAYMENTS;  DISCUSSED WITH V.C. REGARDING FALSE CLAIMS ON TELEPHONE CALLS SHE MADE;  REQUESTED COURT TRANSCRIPT;  OFFICE CONFERENCE AND DISCUSSIONS WITH V.C. TO STOP CALLING AT THIS POINT AND WAIT AND SEE;  CLIENT NOT BEING COOPERATIVE AT ALL;  DISCUSS WITH V.C. GETTING OUT MOTION TO WITHDRAW;  MOTION FOR FEES;  MOTION FOR RESTRAINING ORDER;  ETC. NEXT STEPS, ETC.

PAYMENTS

The invoices reflect the plaintiff's charges for professional fees and disbursements, but do not state the amount of payments received by the plaintiff from the defendant or on her behalf.   The charges reflected on the invoices total $208,873.24.   The final invoice shows a balance due of $128,873.24, suggesting that the plaintiff may have received payments totaling $80,000.00.   An analysis of the invoices confirms the amount of payments made by the defendant.

The first two invoices together totaled $18,371.09 and were clearly charged against the $20,000 retainer.   The third invoice in the amount of $38,042.66 shows that it was paid from the retainer leaving no balance payable.   Attorney Opinsky testified that on October 21, 2010 “we had additional fees in September that counsel signed a stipulation where each attorney got additional fees from a Morgan Stanley account that was still credited against it.”   The fourth invoice reflects charges of $43,046.61 and payment of $13,586.25 from the retainer, leaving a balance due of $29,442.36.   These invoices verify that the defendant made total payments to the plaintiff on or before November 23, 2010 (the date of the fourth invoice) of $70,000.¹²  The fifth invoice reflects charges of $26,968.66 and a balance due of $56,411.02 ($29,442.36 plus $26,968.66).   The sixth invoice reflects current charges of $16,940.50 and a prior balance of $46,411.02, reflecting an additional $10,000 payment to the plaintiff on or before January 19, 2011, the date of the sixth invoice.

OPINSKY'S TESTIMONY

In her direct examination of attorney Opinsky, counsel for the plaintiff asked “How did the invoices get so high?”   In response, Opinsky testified that:  1) there was extensive discovery to be conducted in Connecticut and New York related to a sheet metal business that the defendant's husband had owned;  2) “The client was insistent upon having appointments of commission conducted and enforced in New York to depose the accountant for the building—for the business as well as the then owner of the business.”   3) There were at least two dates of depositions of the husband;  4) There were several authorizations to get bank records because the husband had not complied;  5) There was a discovery special master appointed by the court because of the problems the defendant was having obtaining discovery;  6) An expert forensic accountant was retained to engage in negotiations with corporate counsel;  7) The husband was often in Florida visiting relatives and would fail to appear for motions.

Opinsky further testified that the defendant's husband was “entirely uncooperative.”   However, she claimed that following the appointment of the special master she obtained shareholder agreements, redemption agreements and certificates of value for the business.   Opinsky testified that she recommended settlement of the case to the defendant but that the defendant “did not want to hear of settling the case until we got all the documents for discovery.   And, certainly, until we deposed the parties.”   Opinsky testified she obtained the deposition of Michael Siviak and then urged the defendant to settle the case.   She further testified that although discovery (particularly the deposition of Cheeci) was not completed, she urged the defendant to accept a settlement “on many, many, many occasions.”

Opinsky testified that on September 30, 2010, the parties entered into a stipulation permitting her firm and the firm representing the defendant's husband to each be paid $50,000 from the joint account at Morgan Stanley.   At the time of the stipulation the defendant's husband had still not responded to outstanding discovery requests and was in breach of his obligations under the pendente orders.   Payment of the counsel fees of defendant's husband appeared to have produced little, if any, benefit to the defendant.   His posture remained uncooperative with respect to discovery and no evidence indicated that he changed his conduct to meet his obligations under the pendente orders.

Opinsky testified that on April 20, 2010, a private special master spent an entire day with the plaintiff and counsel for the defendant's husband and had recommended a settlement to both sides.   At approximately the same time, counsel for both sides appeared before Judge Malone and presented a stipulation to the court for approval.   The plaintiff's actions in connection with the stipulation, and the defendant's actions following the approval of the stipulation, are under dispute and are discussed separately below.

On cross-examination, Opinsky stated that at the time the defendant retained the plaintiff, there were existing pendente lite orders in effect under which the defendant's husband was required to pay her alimony.   She further testified that prior to the plaintiff's retention the court had ordered the defendant's husband to pay health, medical, vision and dental insurance for the defendant's benefit.   The orders in place also required the defendant's husband to pay real estate taxes and homeowners insurance.   Opinsky conceded that she had not been able to get the defendant's husband to fully comply with these outstanding court orders.   In answer to the defendant's question, Opinsky stated that she could not recall whether she had ever received anything in writing concerning contingent liabilities, pension problems or assets that were taken by the defendant's husband prior to the commencement of litigation.

In response to the defendant's question as to whether the plaintiff had received all of the business information that the defendant felt was required in order to create an equitable distribution, Opinsky first made an affirmative without qualification.   When pressed, she changed her claim to:  “we got most of it.”

On redirect examination, Opinsky testified that at the time she was seeking to obtain discovery regarding OMC, the defendant's husband was not an owner of that company.   When questioned by the defendant Opinsky testified that she came to that conclusion based upon materials she was able to obtain in discovery.   Opinsky also stated that in reaching that conclusion she had relied upon representations made to her by counsel representing the defendant's husband and upon the deposition of the husband, and accountant Michael Siviak that she was able to conduct.

When questioned by the court, Opinsky claimed that the defendant refused to settle the case unless she received 100% of the marital estate.   Opinsky claimed that she did not become aware of the defendant's unrealistic expectations until early April 2011, over ten months after the plaintiff's representation of the defendant began.   This testimony was directly contradicted by the notation Opinsky placed on the seventh invoice for the date January 19, 2011.¹³

When asked about the plaintiff's failure to obtain the testimony of Michael Cheeci, Opinsky testified that she may have obtained a commission to take his deposition in September 2010, but could not obtain an order from the New York State court to take the deposition for eight months.   She further testified that she had to appear in New York State court five times to obtain that order.   When questioned by the defendant as to whether some of the hearings in New York State court were required because of improper service on Cheeci, Opinsky stated she could not recall.   The court was astonished at Opinsky's lack of command of the details of her handling of the defendant's case which occupied so much of her time during the ten-month period during which the plaintiff represented the defendant.

ALLEGED COURT ORDER REQUIRING PAYMENT OF COUNSEL FEES

In its moving papers and the testimony of attorney Opinsky the plaintiff made reference to orders of the Superior Court (Malone, J.) relating to the fees to which the plaintiff was entitled.   The plaintiff claims that following the acceptance of a stipulation by the court on April 18, 2010, the defendant failed to obey a court order to pay the plaintiff $50,000 toward the balance claimed by the plaintiff for services rendered.   The alleged court orders were not produced in evidence, nor was the court asked to take judicial notice of any such orders.   The court made inquiries of Opinsky as to how and why a judge, sitting in a family case, would have occasion to order a litigant to pay his or her own attorney.   The plaintiff's response was that, despite lack of any statutory or Practice Book authority, orders approving periodic counsel fees are often agreed to by opposing counsel representing the litigants in family matters and that, thereafter, orders requiring clients to pay their own counsel are entered by the court.

Paragraph 22 of the proposed complaint refers to “Exhibit D,” a copy of a stipulation signed by the defendant and her husband in April 2011 and a transcript of a hearing held before the court (Malone, J.) on April 18, 2011.   The copy of the stipulation is still dated March 2, 2011.   However, in contrast with Exhibit C, the stipulation bears both the defendant's signature and that of her husband.   Exhibit D also differs from Exhibit C in that it states the expectation that both the defendant and her husband will pay their respective attorneys “immediately” rather than “no later than March 15, 2011.”

The transcript shows that after having been presented with the stipulation (Exhibit D to the proposed complaint), Judge Malone stated:  “All right.   The stipulation is approved and entered as an order.”   In context, it is clear that Judge Malone was, at most, entering order suspending the standing orders to the extent necessary to allow a portion of the funds in the joint Morgan Stanley account to be distributed equally to the husband and the wife.   The court concludes that the transcript attached to the proposed complaint as part of Exhibit D does not support the claim that the court ordered the defendant to pay $50,000 in legal fees to the plaintiff.

TESTIMONY OF THE DEFENDANT

The defendant testified that her husband left the marriage taking $340,000 in marital assets with him.   Prior to retaining the plaintiff, the defendant had engaged a forensic accountant named Mark Harrison.   However, Harrison was unable to accomplish anything because her husband had withheld business documents and other records from her and consistently resisted all attempts at obtaining discovery.   The defendant claimed that most open discovery issues were not effectively pursued by the plaintiff and were still open in the spring of 2011, when the attorney-client relationship broke down.   She claimed that she had provided Opinsky with detailed information concerning bank accounts and credit cards, but that Opinsky had never obtained any information regarding a significant bank account she knew to exist.   She claims that in September 2009, while driving to court in the Bronx, Opinsky told her that the documents to obtain depositions in New York had been improperly filed and that they would not be able to take the deposition of Michael Cheeci, her husband's partner in OMC. The defendant testified that she believed that Cheeci's testimony was essential because he and her husband owned real estate in New York City in equal shares, and that Opinsky had not gotten adequate information regarding that property.   She claimed that although her husband testified, at his deposition, that the real estate was worth $630,000, an analysis showed the value to be closer to $2 million dollars.   She testified that at Michael Siviak's deposition it was learned that OMC had retained earnings of $2.3 million, but that her husband had not been paid any of that money directly.

The defendant testified that her suspicions that her husband was hiding assets from her were increased due to his willingness to spend considerable legal fees to frustrate her attempts to obtain accurate information concerning his holdings.   These suspicions were increased when she learned that Cheeci was paying expenses on behalf of her husband when he had no obligation to do so.   She apparently felt that the agreements that the plaintiff obtained through discovery did not reveal all the agreements which her husband reached with Cheeci.

She testified that soon after retaining the plaintiff as her counsel, her husband ceased making payments required by the pendente orders.   Despite many motions for contempt and/or for compliance, the plaintiff never succeeded in obtaining compliance with these orders.   The defendant also testified that she signed a stipulation on March 2, 2010, allowing the plaintiff and counsel for the defendant's husband access to $50,000 each in legal fees from the couple's joint account.   However, after signing and before her husband had signed, she notified Opinisky that she was withdrawing her consent to the arrangement.   On cross examination by the plaintiff, the defendant testified that she felt that Opinsky was more interested in seeing that her fees and those of her husband's counsel were paid, than in obtaining discovery regarding her husband's assets or in obtaining his compliance with pendente orders.

DISCUSSION

Each of the plaintiff's counts is based on the claim that the plaintiff furnished legal services to the defendant and that the defendant has not paid the plaintiff in full for such services.   The principle evidence presented by the plaintiff consisted of the retainer agreement, the monthly invoices issued by the plaintiff and the testimony of Opinsky.   After considering the evidence, the court cannot conclude that the plaintiff has demonstrated probable cause that judgment will be rendered in favor of the plaintiff in the amount of the prejudgment remedy sought.

Opinsky would have the court believe that following her engagement by the defendant she acted professionally and effectively to represent the defendant's interests in her matrimonial dispute.   From Opinsky's viewpoint, the attorney-client relationship broke down when the defendant:  1) rejected Opinsky's advice to accept a reasonable settlement offer from her husband;  2) obtained $50,000 from the Morgan Stanley joint account under false pretenses;  and 3) refused to make any further payments to the plaintiff for the outstanding legal fees.   Her testimony was replete with many references to the greed and unreasonableness of the defendant, her former client.   It is clear that Opinsky saw her firm's claims against the defendant as little more than a collection matter.

The evidence heard by the court raised substantial issues as to the legal services rendered to the defendant by the plaintiff.   Both Opinsky and the defendant were in agreement that, at the start of the representation, the defendant was ignorant as to the details of her husband's assets and his business dealings.   In addition, the parties agreed the defendant's husband was not in compliance with pendente orders already in place.   The objectives were clear.   First, to obtain discovery from the defendant's husband and conduct independent discovery in New York from the husband's accountant and business partner;  and second, to have the husband comply with the pendente orders.

During the period June 2010 to December 2010 the plaintiff billed the defendant for over $140,000 in legal fees and had been paid $80,000 on account.   However, discovery was still not completed and the defendant's husband had not been forced to comply with the pendente orders.   Despite the absence of full discovery, in early 2011 Opinsky came to the conclusion that she was sufficiently certain as to the extent of the husband's assets to urge that the defendant accept a settlement offer from the husband's counsel.   Opinsky included on her firm's seventh invoice a notation for January 19, 2011 stating that:  1) the defendant was seeking 100% of the family home and 100% of the assets;  2) the defendant had been advised that such an outcome was unlikely;  and 3) Opinsky had urged the defendant to settle quickly.

In her testimony, Opinsky never explained how she was able to make any judgments concerning the amount of the husband's assets when she had been unable to conclude discovery.   A review of the invoices show that even after January 19, 2011, significant hours were billed in continued efforts to obtain the testimony of Cheeci.   The reasons for these continued efforts were not explained by Opinsky's testimony.   If Opinsky was sufficiently certain of the extent of the husband's assets without Cheeci's evidence, it would have made no sense to continue to pursue discovery in New York. On the other hand, if Cheeci's evidence was required in order for Opinsky learn the true extent of the husband's assets, Opinsky's advice to the defendant to settle before learning that information is inexplicable.

It was clear to Opinsky since her firm was retained by the defendant in June 2010, that the defendant believed that Cheeci could supply information that the defendant's husband had not been truthful regarding his assets, in particular his interests in OMC and related interest in real property.   In her testimony, Opinsky never stated that she had conducted sufficient discovery to enable her to come to a reasonable estimate as to the extent and value of the husband's interests in the assets in question.   Nor did she state that, for other reasons, she decided that Cheeci's testimony was unnecessary.   The evidence presented by the plaintiff does not demonstrate any real benefit which the defendant may have received from the services rendered to her by the plaintiff.

The evidence shows that in early 2011, despite the fact that discovery was not completed, Opinsky began urging the defendant to accept settlement offers from the husband and to treat the defendant as a grasping person seeking an unreasonable portion of the marital estate.   It appears that once Opinsky started to urge settlement, she abandoned any role of acting as an advocate for her client, and instead allied herself with the defendant's husband's counsel in:  1) abandoning attempts to obtain discovery compliance from him;  2) failing to obtain discovery from Cheeci;  3) not obtaining the compliance of defendant's husband with the pendente orders;  4) focusing on obtaining payment of fees to both counsel from the frozen joint account.

Based on the foregoing, and considering the various counts of the plaintiff's complaint, the court cannot find that the plaintiff has established probable cause that it is entitled to legal fees in addition to those already paid to the plaintiff by the defendant.   It is true that probable cause is a low standard, however, even that low standard was not satisfied by the evidence presented to the court by the plaintiff.   The court concludes that the plaintiff has not established that there is probable cause that it will prevail on any of its claims at trial.   Accordingly, the application for a pre-judgment remedy is denied.

David R. Tobin, Judge

FOOTNOTES

FN1. Count I alleges a breach of contract.   Count II alleges a breach of the implied covenant of good faith and fair dealing.   Count III purports to state a cause of action based on quantum meruit.   Count IV alleges unjust enrichment.   Count V alleges fraud.   Count VI seeks a declaratory judgment that a retainer agreement between the plaintiff and the defendant dated June 20, 2011(sic) is valid..  FN1. Count I alleges a breach of contract.   Count II alleges a breach of the implied covenant of good faith and fair dealing.   Count III purports to state a cause of action based on quantum meruit.   Count IV alleges unjust enrichment.   Count V alleges fraud.   Count VI seeks a declaratory judgment that a retainer agreement between the plaintiff and the defendant dated June 20, 2011(sic) is valid.

FN2. This date is an apparent typographical error.   The retainer agreement attached to the complaint as “Exhibit A” and later introduced into evidence as Exhibit 1 is dated June 20, 2010..  FN2. This date is an apparent typographical error.   The retainer agreement attached to the complaint as “Exhibit A” and later introduced into evidence as Exhibit 1 is dated June 20, 2010.

FN3. Charging liens have only been recognized in Connecticut in situations where the attorney's efforts have produced a recovery for the client.   D'Urso v. Lyons, 97 Conn.App. 253, 256–7 (2006)..  FN3. Charging liens have only been recognized in Connecticut in situations where the attorney's efforts have produced a recovery for the client.   D'Urso v. Lyons, 97 Conn.App. 253, 256–7 (2006).

FN4. General Statutes § 52–325(a) permits the filing of a lis pendens by a plaintiff only “at the time the action is commenced or afterwards.”.  FN4. General Statutes § 52–325(a) permits the filing of a lis pendens by a plaintiff only “at the time the action is commenced or afterwards.”

FN5. “As used in this section, actions ‘intended to affect real property’ means (1) actions whose object and purpose is to determine the title or rights of the parties in, to, under or over some particular real property;  (2) actions whose object and purpose is to establish or enforce previously acquired interests in real property;  (3) actions which may affect in any manner the title to or interest in real property, notwithstanding the main purpose of the action may be other than to affect the title of such real property.”.  FN5. “As used in this section, actions ‘intended to affect real property’ means (1) actions whose object and purpose is to determine the title or rights of the parties in, to, under or over some particular real property;  (2) actions whose object and purpose is to establish or enforce previously acquired interests in real property;  (3) actions which may affect in any manner the title to or interest in real property, notwithstanding the main purpose of the action may be other than to affect the title of such real property.”

FN6. “The Superior Court possesses inherent authority to regulate attorney conduct and to discipline members of the bar.”  Massameno v. Statewide Grievance Committee, 234 Conn. 539, 563 (1995).   See also Burton v. Mottolese, 267 Conn. 1, 25 (2003)..  FN6. “The Superior Court possesses inherent authority to regulate attorney conduct and to discipline members of the bar.”  Massameno v. Statewide Grievance Committee, 234 Conn. 539, 563 (1995).   See also Burton v. Mottolese, 267 Conn. 1, 25 (2003).

FN7. An attorney or paralegal named J.L. Galiatsos spent .7 hours on July 20, 2012 filing motions to appoint a commission with the court.   Although listed as an attorney on the “Attorney Time Summary” it appears that the time for that individual was charged at the rate of $200 an hour;  a rate below the lowest rate quoted in the retainer agreement and within the range for paralegals..  FN7. An attorney or paralegal named J.L. Galiatsos spent .7 hours on July 20, 2012 filing motions to appoint a commission with the court.   Although listed as an attorney on the “Attorney Time Summary” it appears that the time for that individual was charged at the rate of $200 an hour;  a rate below the lowest rate quoted in the retainer agreement and within the range for paralegals.

FN8. Including $502.80 for “Photocopying!”.  FN8. Including $502.80 for “Photocopying!”

FN9. The invoice indicates that an attorney or paralegal named Zamat spent 1.7 hours drafting the motion for contempt, indicating that it took Galiatsos 48 minutes to simply file the motion and serve opposing counsel..  FN9. The invoice indicates that an attorney or paralegal named Zamat spent 1.7 hours drafting the motion for contempt, indicating that it took Galiatsos 48 minutes to simply file the motion and serve opposing counsel.

FN10. Opinsky's testimony suggests that the only reason for involvement in court in the Bronx was to give effect to commissions issued to take the depositions of Siviak and/or Cheeci.   The time spent in attempting to accomplish this relatively routine task appears to be grossly excessive..  FN10. Opinsky's testimony suggests that the only reason for involvement in court in the Bronx was to give effect to commissions issued to take the depositions of Siviak and/or Cheeci.   The time spent in attempting to accomplish this relatively routine task appears to be grossly excessive.

FN11. Opinsky testified as to the existence of a joint Morgan Stanley Account from which she sought to recover a portion of the fees owed her firm in March and April 2011..  FN11. Opinsky testified as to the existence of a joint Morgan Stanley Account from which she sought to recover a portion of the fees owed her firm in March and April 2011.

FN12. Apparently the sum of the $20,000 retainer and the $50,000 taken from the joint account at Morgan Stanley and Company pursuant to the September 30, 2010 stipulation..  FN12. Apparently the sum of the $20,000 retainer and the $50,000 taken from the joint account at Morgan Stanley and Company pursuant to the September 30, 2010 stipulation.

FN13. “CLIENT STILL WISHES 100% OF HOUSE AND 100% OF ASSETS WHICH IS UNLIKELY AND HAS BEEN SO ADVISED.”.  FN13. “CLIENT STILL WISHES 100% OF HOUSE AND 100% OF ASSETS WHICH IS UNLIKELY AND HAS BEEN SO ADVISED.”

Tobin, David R., J.